Police Civil Liability: Lessons From the Brooks Case
by A discussion of whether the negligence claim in Brooks v Commissioner of Police for Metropolis [2005] UKHL 24, [2005] one WLR 1495 should have been allowed, and what alternative remedies and avenues of accountability (both legal and other) would have been available to Mr Brooks in New Zealand.
[33]A Butler and G McLay Liability of Public Authorities New Zealand Law Society seminar, June 2004.
[34]On the Sivasubramaniam v Yarrall [2005] 3 NZLR 268 apportionment test, it is difficult to figure how much compensation should be paid. On the substantial cause test suggested by Professor Manning of the University of Auckland Law School, the damages to Mr Brooks were substantially caused by the racist attack rather than police actions, and hence would not have any compensation (since there was no physical injury accompanying the mental injury).
[35] Accountability encompasses remedies.
[36] A summary applicable to the UK is provided in the Bailey article at 163.
[37] Note that compensation under the IPA 2001 does not provide accountability.
[38]McDermott v Wallace [2005] 3 NZLR 661.
[39]See Geoff McLay “New Zealand Supreme Court, the Couch Case and the Future of Governmental Liability” (2009) 17 Torts Law J 77.
[40] Here appealing a decision is not possible without proving bad faith on the authority: section 33(1)(a) of the Independent Police Conduct Authority Act 1988.
[41] Decisions cannot be challenged in courts, except on lack of jurisdiction: section 25 of the Ombudsmen Act 1975.
[42]For example, Minister of Fisheries v Pranfield Holdings Ltd [2008] 3 NZLR 649 (CA).
[43]See the New Zealand Police Code of Conduct < www.police.govt.nz/about/code-of-conduct.html > (at 31 May 2009).
[44]The issues are tangent to the ideology behind the private/public law divide. As a starting point, the reader is referred to D Kennedy “The Stages of the Decline of the Private/Law Distinction” (1982) 130 University of Pennsylvania Law Rev 1349, and J Weintraub and K Kumar Public and Private in Thought and Practice: perspectives on a grand dichotomy (University of Chicago Press, 1997).
[45]According to Butler and McLay, exemplary damages could be available under BORA depending on the outrageous nature of the police conduct. See page 151.
[46]It could be argued that the police actions, as described in the Macpherson Report, violate Mr Brooks rights under sections 9 (right not to be subjected to torture or cruel treatment), especially the right not to be subjected to degrading treatment, and 19 (freedom from discrimination) in relation to discrimination under sections 21(e) (color), 21(f) (race), and 21(g) (ethnic origin) of the HRA 1993.
[47]Mr Brooks could also bring proceedings before the Human Rights Review Tribunal (HRRT) under sections 92I, 92J, 92O and 92P of the HRA 1993. The HRRT can order damages up to $200,000: section 92Q, for “humiliation, loss of dignity, and injury to the feelings of the complainant or, as the case may be, the aggrieved person”: section 92M(c).
[48]This was the main approach in Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50, [2008] 3 WLR 593.
[49]BBC News Police Payout for Lawrence Friend (2006-03-10) < http://news.bbc.co.uk/1/hi/england/london/4793426.stm > (at 31 May 2009). Cited in < http://en.wikipedia.org/wiki/Stephen_Lawrence > (at 31 May 2009).
[50] To date, there is no finding on these claims.
[51]Beverly Wakem, the Chief Ombudsman, was asked (on 23 April 2009 as part of an honors seminar at the Auckland University School of Law) whether there were any mechanisms in place to ascertain the efficiency and effectiveness of the services provided by the Office of the Ombudsmen, Ms Wakem indicated that the first “client satisfaction” survey was yet to be conducted.
[52] Although accountability is wider that liability, liability “ignites” society’s interest: subjective adequacy relates more to liability.
[53]Take for example the former assistant police commissioner Clint Rickards’ acquittal in 2006. From media coverage (see for example the New Zealand Herald 13 November 2008, and 31 March 2006), it is difficult to conclude that the scandal boosted the perception of adequacy of the checks and balances on the police.
[54]This is within the spirit of Lord Bingham dicta in Fairchild v Newhaven Funeral Services Ltd [2002] UKHL 22; [2002] 3 WLR 89 at para 9 in relation to the overall objective of tort law: “to define cases in which the law may justly hold one party liable to compensate another”. Cited in C. Harlow State Liability: Tort Law and Beyond (Oxford University Press, Oxford, 2004) at 14.
[55] Public and Administrative Law Reform Committee Damages in Administrative Law (14th report, May 1980) para 27.
[56]It is a “grok” because the author does not want to fall into the same “alchemic” trap. A proper “scientific” design is required.
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